Criminal laws governing similar issues should not determine civil outcome

“I think that's a good thing. The analogy between criminal aiding and abetting liability and third-party intellectual property infringement fails given careful consideration of the reasons behind imposing criminal sanctions in the first place.”

Mark Bartholomew, professor of law

University at Buffalo

BUFFALO, N.Y. – Yesterday’s Supreme Court decision
in the Limelight Networks v. Akamai Technologies case states
criminal law should not bear much weight in how third-party
infringement of property rights cases are decided, according to a
University at Buffalo Law School professor and expert on cyberspace
legal issues.

“The Limelight Networks case is part of a series of cases
winding their way through the courts, all struggling with a
complicated question: How should courts handle it when big
companies do not infringe intellectual property themselves but
somehow enable others to infringe?” says Mark Bartholomew, a
professor in the UB Law School with special expertise in
intellectual property and law and technology issues.

“In other words, should Internet powerhouses like Google,
eBay and Amazon.com be responsible for acts of individuals that use
their technologies to unlawfully copy the creations of
another?”

One of the questions at the heart of the case was whether
criminal laws that resolve similar issues should influence the way
so-called third-party infringement cases are decided, according to
Bartholomew.

“Criminal law imposes liability on accomplices, people who
did not do the specific criminal act themselves but somehow
contributed to it in other ways,” says Bartholomew.

“Think of someone who drives a getaway car or
intentionally gives matches to an arsonist. The plaintiff in
the Akamai case argued that criminal law shows that liability
should be found against a business that encourages patent
infringement, even if there is no single person or entity that
actually performs all the steps necessary to infringe on the patent
at issue.”

Other courts have been receptive to Akamai's basic argument,
says Bartholomew, using old criminal law decisions to justify
imposing liability against third-party actors.

“But the Supreme Court was having none of it,” he
says. “Acknowledging that it had relied on criminal law
analogies to decide different intellectual property issues in the
past, the Court said that criminal law had nothing in it to help it
resolve this case.

“I think that's a good thing. The analogy between
criminal aiding and abetting liability and third-party intellectual
property infringement fails given careful consideration of the
reasons behind imposing criminal sanctions in the first
place. Criminal law focuses on evidence of culpable mental
state. And this makes sense given the theory of retribution
that guides most of criminal law: Criminal accomplice liability is
designed to punish those who unmistakably support criminal activity
even if they do not commit all of that activity
themselves.

“Intellectual property law is different. Its
animating goal is instrumental, to encourage the creation of the
greatest number of expressive and inventive works. In this
area of the law, we care less about what people think and more
about what they do. Give the Court credit for recognizing
this difference, and drawing a clear line between criminal law and
intellectual property law, at least on this particular
issue.”